German National Refused ESA RTR

Hi All,

I have a client who is a German national.  She has three children who also German nationals.  One is in full time college, age 20, the other two aged 15 and 16 are in fulltime education.

Client has been living in the UK since 2003 and has never worked.  I believe she did work in Germany before coming to the UK, however information regarding this is patchy. 

Client tells me she received IS when she first came to the UK, however went to prison for three years.  When she came out of prison she made a further claim for IS but was refused Regulation 21AA(1) and (2) of the Income Support (General) Regulations 1987 and regulation 6 of the immigration (European Economic Area) Regulations 2006.

Client has been claiming JSA ever since.

Recently she had a fall and was told by a member of JCP to make a claim for ESA, however client has been refused. 

Regulation used to make the decision is - Regulation 70(1) and (2) of the Employment and Support Allowance Regulations 2008 and Regulation 6(1) of the Immigration (EEA) Regulations 2006.

If client has been here since 2003 and was entitled to IS based on her employment from Germany (many moons ago), would she now be entitled to ESA (IB)?? Also is there not a recent case about children in school and the parent deriving the right to reside through the children?

Sorry if this seems like a silly question but way out of my depth here!

OK- I’ll have a bash.

She doesn’t have a route to ESA via the school age children because she’s never worked in the UK so that’s out. She can’t recieve ESA on the basis of being a ‘worker in a temporary period of incapacity’ because she’s never worked in the UK so that’s out too. I don’t think she can argue she has a permanent right of residence because whilst she’s been here since 2003 she’s not consistently been a worker/work seeker, etc (I’m not sure how the period in prison is treated but I can’t see she can argue she’s been ‘self sufficient’ throughout the period) so I think the only route to benefit she has is via being a jobseeker (i.e- reclaiming JSA and limiting her availability around the effects of her accident).

The question is how she ever recieved IS in the first place- I can only think she was paid in error.

Anyway- that’s my take on it.

These are my initial thoughts..

As your client was not economically active in UK, then she was not exercising a treaty right in the host member state (i.e. the UK).

From the information you give it appears that the only reason she received income support before, was that she came to the UK before 1 May 2004, before the right to reside test was introduced as part of the habitual residence test.  She would have continued to receive IS or another relevant benefit such as HB/ CTB (under transitional protection) providing the claims were continuous.  As she went into prison for 3 years, it would appear that the transitional protection would have been broken. 

As she has never worked or been self-employed in the UK she would not be a qualified person under Article 7 or regulation 6 of the EEA regs, nor would she satisfy the permanent residence test.  She would only benefit from the cases re deriving right to reside through the children (e.g. Teixeira), if she worked (or was the spouse of an EEA national who worked) at some point whilst the children were in full-time education. 

She would only pass the right to reside test if she was able to claim JSA as a jobseeker or was able to find genuine and effective employment or self-employment..

Anyone else have any thoughts…

Thanks guys…

I did not think she would be entitled because she has never worked in the UK, however the client was so adamant that she is entitled to benefit that she actually made me doubt myself (although I was not quite sure about the Teixeira case).

I have advised her to make a claim for JSA and that she needs to be a work seeker in order to be a qualified person and have the right to reside etc.

Thank you both once again for your advice.